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April is Appeals Month

March 28, 2014

After the Supreme Court tossed the Defense of Marriage Act last June, lawsuits demanding full marriage equality proliferated. Freedom to Marry now counts 60 cases pending in 29 states and territories, from Alabama to Puerto Rico to Wyoming.

The Supreme Court’s DOMA decision was a 5-4 case. In dissent, Justice Antonin Scalia complained that the Court had in effect decided more than the DOMA case – the Court had spelled out the rationale for striking down state prohibitions of same-sex marriage. You won’t hear me say this often: Justice Scalia was right.

Since the DOMA decision, eight federal trial-level judges have ruled on the constitutionality of same-sex marriage bans. All eight of them have struck those bans down. And although six of those judges were appointed by Presidents Clinton and Obama, two were appointed by Presidents Reagan and George H. W. Bush.

No federal court of appeals has yet issued a post-DOMA decision on the constitutionality of same-sex marriage bans. But five judges in two courts of appeals have rule on preliminary motions, and all five implied that they agreed that same-sex marriage bans are unconstitutional. Four of those appeals judges were appointed by the second President Bush; one was appointed by President Obama.

In other words, the rightness of Justice Scalia on this point is so clear and undisputable that judges across the ideological spectrum recognize it.

Seven of the post-DOMA decisions are on appeal, plus a pre-DOMA case in which the appeal was held in abeyance pending outcome of the DOMA case. Those appeals are pending in the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuit Courts of Appeals, which collectively cover most of the country – 30 states, including 25 of the 33 states that do not already permit same-sex marriages.

Four of the eight appeals have been scheduled for oral argument: April 9 for the Nevada case in the Ninth Circuit; April 10 for the Utah case in the Tenth Circuit; April 17 for the Oklahoma case in the Tenth Circuit; and the week of May 12 for the Virginia case in the Fourth Circuit. Ordinarily, much would hang on the composition of the appeals panels, but with this issue, as I’ve said, the identity – and the ideology – of the judges has not mattered.

Appellate courts of course are not bound by trial court precedents; it works the other way around. But when eight trial judges have spoken on an issue, and all eight have ruled the same way, appeals judges do take note. The appeals courts no doubt include a number of Scalians among them, and the appeals judges may not be as uniform as the trial judges have been in striking down same-sex marriage bans.

The first post-DOMA federal appellate rulings should come within the next few months.

UPDATE MARCH 31, 2014:  The Tenth Circuit Court of Appeals today posted the names of the judges who will hear oral argument next week in the Utah case. The judges will be Paul J. Kelly, Jr., a George H. W. Bush appointee; Carlos F. Lucero, a Bill Clinton appointee; and Jerome A. Holmes, a George W. Bush appointee. Judge Holmes was a member of the two-judge panel that declined to stay the order striking down Utah’s same-sex marriage ban. The decision on the stay motion said that Utah had not shown that its appeal was likely to succeed. (The Supreme Court later issued a stay anyway.)


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